Vincent v Close
[2014] WASC 5 (S)
•9 APRIL 2014
VINCENT -v- CLOSE [2014] WASC 5 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 5 (S) | |
| Case No: | CIV:1111/2011 | ON THE PAPERS | |
| Coram: | McKECHNIE J | 9/04/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | First defendant to bear her own costs | ||
| B | |||
| PDF Version |
| Parties: | EDGAR WILLIAM VINCENT NORMAN ROSS VINCENT HEATHER LORAINE CLOSE MARGARET IRIS VINCENT ROSEMARIE MARJORIE STILLITANO DONALD JOHN VINCENT JANICE ELIZABETH FARRALL RICHARD BRUCE VINCENT CHRISTINE CHERYL MUNDIE BARBARA GRACE HENDRIKS JEDALEE MESHELL DEMPSKY JULIUS TREVOR DEMPSKY JENNIFER MARIE MEGNA |
Catchwords: | Costs Whether costs should be paid from estate Whether litigation extended through conduct of party |
Legislation: | Nil |
Case References: | Re Green; Lloyd v Green (Dec'd) [1969] WAR 67 Re Herbert Brothers (Dec'd) (1990) 101 FLR 279 Vincent v Close [2014] WASC 5 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
NORMAN ROSS VINCENT
Second Plaintiff
AND
HEATHER LORAINE CLOSE
First Defendant
MARGARET IRIS VINCENT
Second Defendant
ROSEMARIE MARJORIE STILLITANO
Third Defendant
DONALD JOHN VINCENT
Fourth Defendant
JANICE ELIZABETH FARRALL
Fifth Defendant
RICHARD BRUCE VINCENT
Sixth Defendant
CHRISTINE CHERYL MUNDIE
Seventh Defendant
BARBARA GRACE HENDRIKS
Eighth Defendant
JEDALEE MESHELL DEMPSKY
Ninth Defendant
JULIUS TREVOR DEMPSKY
Tenth Defendant
JENNIFER MARIE MEGNA
Eleventh Defendant
Catchwords:
Costs - Whether costs should be paid from estate - Whether litigation extended through conduct of party
Legislation:
Nil
Result:
First defendant to bear her own costs
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Solicitors:
First Plaintiff : Lynn Hudson
Second Plaintiff : Lynn Hudson
First Defendant : Friedman Lurie Singh & D'Angelo
Second Defendant : No appearance
Third Defendant : Evangel Legal Services
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : Curwood & Co Pty Ltd
Seventh Defendant : Curwood & Co Pty Ltd
Eighth Defendant : Curwood & Co Pty Ltd
Ninth Defendant : Curwood & Co Pty Ltd
Tenth Defendant : Curwood & Co Pty Ltd
Eleventh Defendant : Curwood & Co Pty Ltd
Case(s) referred to in judgment(s):
Re Green; Lloyd v Green (Dec'd) [1969] WAR 67
Re Herbert Brothers (Dec'd) (1990) 101 FLR 279
Vincent v Close [2014] WASC 5
1 McKECHNIE J: Following judgment in Vincent v Close [2014] WASC 5 orders were made providing for the plaintiff's costs and the costs of all the defendants, except for the first defendant's costs, any order for which was adjourned for written submissions.
The principles
2 The plaintiff contends that the first defendant should bear her own costs. They should not be paid from the estate. The first defendant's contention is to the contrary.
3 In Re Green; Lloyd v Green (Dec'd) [1969] WAR 67 Wolfe CJ:
The general rule in probate actions is that costs follow the event: Twist v Tie (1902) P 92; Spears v English, (1907) P 122. There are two types of case where the general rule may be departed from:
1. where the litigation has been brought about through the conduct of the testator; and
2. where the parties who have reasonably been led into the litigation by a bona fide belief in their case and have, therefore, felt it desirable to inquire into the testamentary disposition of the testator [83].
4 In Re Green Wolfe CJ did not order the defendant's costs be paid out of the estate but did make an order for costs against the defendant.
5 In Re Herbert Brothers (Dec'd) (1990) 101 FLR 279 Kearney J:
[See] also the seminal discussion in principle by Sir James Wilde (as he then was) in Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280. His Lordship there said (at 277; 1281) that: 'The basis of all rules on this subject should rest upon the degree of blame to be imputed to the respective parties'. However, he then explained that the function of the Probate Court was such that despite a lack of fault in the testator or beneficiaries, the Court may relieve 'the losing party from costs, if chargeable with no other blame than that of having failed in a suit which was justified by good and sufficient grounds of doubt'.
In Brown v McEncroe (1890) 11 LR (NSW) Eq 134, Owen J succinctly stated the principles applicable as follows (at p 145):
The principles governing the adjudication as to costs in [probate] suits appear to be that, where the litigation is caused by the conduct of the testator, the estate must bear all the costs of both parties. Where neither the testator nor the persons interested in the residue are to blame, and the defendant has reasonable ground for impeaching the will, no order will be made as to costs, but where there is no reasonable ground for impeaching the will the defendant will be order to pay the costs.
See to similar effect Public Trustee v Hall (1937) SASR 252 at pp 253-5, per Angas Parsons J.
6 This is not a case where the testator's conduct has brought about the litigation.
7 In supporting her contention, the first defendant filed a lengthy affidavit deposing as to certain facts. Some of those facts have been disputed by the plaintiff whose solicitor has filed a responsive affidavit.
The sticking point in negotiations
8 The correspondence and other documents attached to the affidavits indicate, in summary, that a point was reached where the first defendant would not oppose a grant of probate in respect of the 1969 Will and would not propound the 2005 document as a Will on the basis of the lack of testamentary capacity. At no point did the first defendant concede that the purposed gift of land contained in the document dated 15 April 2005 was invalid. The first defendant's position (which shifted from time to time but ultimately settled both in correspondence and in the submissions made on her behalf at trial) was that the document was not a testamentary instrument and it was unnecessary for the court to resolve its provenance. The refusal to forthrightly abandon any claim that may arise under the purposed gift was ultimately a sticking point in failing to reach a settlement.
The medical evidence available to the first defendant
9 The first defendant asserts by par 5 and par 6 of her affidavit that when the plaintiff's solicitor emailed the other parties' reports of 6 March 2012 and 5 April 2012 from Dr Grainger and Dr Forward, respectively, that until that time she had relied on Dr Forward's previous affidavit sworn 10 November 2010. She also said that she wrote to Fremantle Hospital on 14 August 2010 receiving a response on 25 August 2010 and relied on those matters.
10 However, the letter from the hospital to the first defendant (HC3A) was neutral in its terms stating that the author who had examined the files 'cannot find any documentation stating whether or not your father suffered from Alzheimer's disease, nor any notations of a discussion between yourself and a treating doctor relating to him having or not having Alzheimer's disease'. The letter concluded with an invitation to make an FOI request.
11 Ms Hudson, the plaintiff's solicitor, recounts how she obtained a copy of the Sir Charles Gairdner Hospital file on 21 November 2011 at the specific insistence of the first defendant. At the further request of the first and second defendant she obtained the hospital notes maintained by Fremantle Hospital. These were delivered to the solicitors then acting for the first defendant on 21 November 2011.
12 The Fremantle Hospital record delivered to the first defendant's solicitor in 2011 contained, amongst other things, 'integrated progress notes' dated 13 November 2007 prepared by Dr Hetherington which records the 'principal history of the deceased as dementia and arthritis - according to the daughter'.
13 The Fremantle Hospital file also contains a referral report from a senior social worker which records the deceased's history with SCGH and Concorde Nursing Home and notes that the deceased was admitted to SCGH with a diagnosis of dementia and then placed in the Concorde Nursing Home in 2004.
14 Those records were made available to the first defendant. Neither the first defendant nor her solicitors have ever inspected the SCGH file. However, on 12 December 2011, Ms Hudson wrote to the then solicitor for the first defendant enclosing a selection of documents from the SCGH file.
15 In the light of the whole of the evidence, I conclude that from a very early stage in the litigation the first defendant was aware of the overwhelming evidence that the deceased lacked capacity in 2005, notwithstanding some statutory declarations that had been obtained on her behalf and Dr Forward's original but later revised opinion.
16 Dr Grainger's unchallenged evidence at trial (exhibit 4):
As the daughters previously agreed with our assessment that he does not have capacity to sign the form I insisted on getting a further opinion from Dr Paul O'Hara, Psychogeriatrician (the daughters were reluctant to get a further opinion but given the disagreement with previous opinions I insisted on this).
17 Dr O'Hara was of the opinion (exhibit 20) that the deceased did not have the capacity to sign an enduring power of attorney.
18 Dr Grainger also recorded a family meeting on 18 November 2004 (exhibit 19) at which the first defendant was present. After explaining why the deceased lacked capacity to execute an enduring power attorney:
At this point both daughters became verbally aggressive and physically threatening. When asked what they would like the team to do to resolve the situation they stated that they just wish to sign an Enduring Power of Attorney; nothing else would be acceptable for them. When told that this was not possible the degree of verbal aggression and physically intimidating behaviour necessitated that the meeting be ceased. Sometime after the completion of the meeting one of the daughters continued to follow me around the Department shouting angrily.
19 Whether or not she wished to hear the news, the first defendant knew from 2004 the medical opinion was that the deceased lacked capacity.
What was in issue a month from trial
20 At a directions hearing of 8 November 2013, the first defendant was unrepresented. She confirmed that she would not give up rights to her grandparents' property. She indicated she would not challenge the 1969 Will. When I said she had admitted that the purported 2005 gift was not a valid testamentary disposition she explained why that admission was made. She said:
But the issue is the Crawley property that belonged to my grandparents' property. And I feel, sir, this should be dealt with first, and knowing if this is part of my father's estate, who is the owner of that part of the estate. And it should be divided up by the administrator towards the end, not going at the other way round, sir (39).
…
McKECHNIE J: What is your position in relation to the 2005 documents? Are they valid, or do you concede that they are not valid?
CLOSE, MS: Well, as far as I can see, sir, the intent of the documents are valid (43).
21 There followed a short conversation then:
McKECHNIE J: Apart from the fact of his age, and Alzheimer's
CLOSE, MS: He didn't have Alzheimer's, sir (43).
…
McKECHNIE J: … The question I asked you is, within this case, are you contending that either of those documents are valid wills?
CLOSE, MS: Well, in my belief, sir - I believe they are (44).
22 Ms Close indicated:
The trial - the trial will be about, I should imagine, sir, is that my father intentions was that he left his estate to his biological children (45).
…
McKECHNIE J: Well, do you dispute Dr Grainger's observations and opinion?
CLOSE, MS: Yes sir. Very much so (46).
23 This transcript demonstrates both the unreasonableness of the first defendant's position, especially in light of the stand taken at trial, and the importance of the 2005 purported gift in her mind. At trial her counsel did his best to save her from herself but was only partly successful.
Conclusion
24 The first defendant's actions throughout this litigation have greatly expanded the costs incurred by the estate without good cause. Her actions have been unreasonable. Ordinarily there would be grounds for requiring her to pay the costs incurred by the other parties. However, I am not asked to do that. For a defendant to an application for probate to pay their own costs is unusual. This is an unusual case and such a result is justified.
25 I decline to order that the first defendant's costs be paid from the estate.
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